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Homeowners facing foreclosure and needing time to stop the procedure can employ the “Produce the Note” strategy. By doing so, they force the foreclosing lender to prove that it has a legal claim on the property and that the borrower owes the mortgage amount. This strategy depends on the lender's not taking all the necessary steps to secure the original mortgage note, which carries your signature and those of any witnesses. If the mortgage was sold soon after closing by the original lender (a common practice), that note may not be in the second lender’s direct possession. Thus, your legal demand for the note, which proves the lender’s claim, can delay foreclosure proceedings.

1

Read the text of the foreclosure claim carefully. The lender may have included language in the document that, in effect, admits that the note is not in its possession. In this case, you must challenge the foreclosure, as another lender that handled or transferred the loan may come along to make a legal claim against your property. The court will not necessarily enforce the legal obligation of the lender to produce the note, and your credit rating will be severely damaged no matter what the outcome of the foreclosure suit.

2

Complete a request to produce the original mortgage note, giving a deadline (30 days is reasonable). The document must carry the full case style of the foreclosure proceeding (as well as the court case number) and a certificate of service (which states the date it was served) above your signature or your attorney's. You must serve this document on the lender's attorney via certified mail. File the request in court.

3

If the lender does not respond, file a motion to compel production in the foreclosure case. This is a court document asking that the court compel production of the original note. You should request a hearing on the matter, and the motion must be signed by you or your attorney. Service must be certified. At this point, it is best to have an attorney involved so that all legal requirements of the court filings are met.

4

The lender may file an affidavit of lost note, or similarly named pleading, which states that the original note has been misplaced or destroyed and that other valid evidence proving the existence of the note, and the debt, will be forthcoming. In the meantime, these responses and filings are costing the lender attorney fees as well as time and clerical expenses.

5

The clerk of court will set a hearing date, and you must attend this hearing with your representative. At the hearing, the judge or mediator will either dismiss your motion and accept the lender’s evidence, or require the lender to produce the original note or have the foreclosure dismissed. In any case, you have effectively delayed the foreclosure by six weeks or more and have had additional time to work out terms with the lender.

Tip

Contact the clerk of court where the foreclosure case has been filed to make sure all deadlines are met and your documents have, in fact, been entered into the case file.

Warning

Do not contact the lender or their attorney directly. Work through the court case to make sure all legal requirements of your demand are met.

About the Author

Founder/president of the innovative reference publisher The Archive LLC, Tom Streissguth has been a self-employed business owner, independent bookseller and freelance author in the school/library market. Holding a bachelor's degree from Yale, Streissguth has published more than 100 works of history, biography, current affairs and geography for young readers.